In June, Trump’s nominee to be attorney general, William Barr, sent an unsolicited memo to Rod Rosenstein arguing that the Mueller investigation should not investigate Trump for obstruction of justice for anything he has the authority to do, like firing the FBI director. And Trump knew about that memo when he nominated him.
Barr, who served as the attorney general in the early 1990s under President George H.W. Bush, said in the memo that he is “in the dark about many facts, but I hope my views may be useful.”
The memo argued that a president can be investigated for acts that would directly alter an investigation, such as suborning perjury or destroying evidence. But Barr contended that the department should not investigate the president for acts that are allowed under his legal authority as president but could, in theory, be done for the purpose of blocking an investigation.
Specifically, Barr wrote that because a president has the power to hire and fire an FBI director, Mueller should not investigate the president’s decision to fire Comey. He wrote that doing so would ultimately limit the chief executive’s authority over government agencies, and the authority of senior Justice Department officials who might later decide to shut down investigations or not approve the filing of charges.
But Harry Litman, a former Deputy Attorney General who has high praise for Barr in general, disputes that argument.
There are substantial counter-arguments to Barr’s analysis — though he doesn’t spend a lot of time identifying and rebutting possible objections. But it is in fleshing out his statutory conclusion that Barr wanders into constitutional territory that I believe is dubious and, depending on very plausible courses of events in the coming year, alarming.
Barr asserts that “defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.” He later adds that “the President’s exercise of its Constitutional discretion is not subject to review for ‘improper motivations’ by lesser officials or by the courts.”Barr seems here to suggest that a president cannot commit a crime or violate the Constitution if he is exercising an enumerated executive power, such as appointment, removal or pardon. To date, I am aware of nobody other than Rudolph W. Giuliani and Alan Dershowitz who have advanced this view. It is a royalist mind-set that cannot be squared with the constitutional text and structure, important decisions of the Supreme Court, and our strongest shared intuitions about unconstitutional conduct (for example, the president’s removal of an official for reasons of rank racial prejudice).
The fact that a president has the authority to do something does not necessarily mean that he can do it without regard to any other law. For example, it is undeniable that the president has the authority to fire someone in the executive branch, but if they did so because that employee was black, or a woman, or of a different religion, that would violate anti-discrimination laws. And let’s not dismiss Litman’s reference to “our strongest shared intuitions about unconstitutional conduct.” What I think he means by this is that one of the underlying principles behind the Constitution is that no one is above the law. In practice, that means that no one can exercise their power to end an investigation into their own conduct.
To allow that is to put the president above the law and that is a violation of one of the bedrock, foundational principles of our entire system of government. Under my guiding theory of constitutional interpretation, Jack Balkin’s living originalism, or what he often calls the “text plus principles” approach, that simply cannot be allowed. We must apply broad principle in our interpretation of specific constitutional texts or we put the entire system of the rule of law in danger.